ROBERTO GUAJARDO, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion Filed December 20, 1989.
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-00783-CR
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ROBERTO GUAJARDO, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-80089-89
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OPINION PER CURIAM
Before Justices Stewart, Thomas and Kinkeade
        Roberto Guajardo was convicted by a jury of burglary of a habitation and punishment was assessed by the jury at fifty years' confinement. In two points of error, appellant contends that the trial court erred in: 1) admitting into evidence a penitentiary packet because the judgment contained in the packet was not signed by the trial judge; and 2) failing to submit his specially requested charge regarding the allegedly improper lineup. We disagree and affirm.
        In his first point of error, appellant contends that the trial court erred in admitting a pen packet which contained an unsigned judgment. He argues that the Texas Code of Criminal Procedure requires that a judgment be signed by the trial judge. See Tex. Code Crim. Proc. Ann. art. 42.01, § 1 (Vernon 1981). The Court of Criminal Appeals has held, however, that the validity of a conviction is not affected by the failure of the trial judge to sign the judgment. Mulder v. State, 707 S.W.2d 908, 913 (Tex. Crim. App. 1986); Gutierrez v. State, 456 S.W.2d 84, 86 (Tex. Crim. App. 1970). Thus, the absence of the judge's signature will not render the judgment inadmissible. See Harrell v. State, 643 S.W.2d 686, 690 (Tex. Crim. App. [Panel Op.] 1982). We overrule point of error one.
        In point of error two, appellant argues that the trial court erred in refusing to submit to the jury his specially requested instruction that the jury must first decide that the photographic lineup was not impermissibly suggestive, and that the police did not misrepresent that the suspect's picture was in the lineup, before it could consider the identification made by the complainant. Although not cited, we assume that appellant is seeking a charge under article 38.23 of the Code of Criminal Procedure:
    No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
 
    In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if if believes, or has a reasonable doubt, that the evidence was obtained in violation of a provision of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 1981). The Court of Criminal Appeals has held that article 38.23(a) applies only to illegally obtained evidence and that in-court identifications do not come within the scope of such article. Allen v. State, 511 S.W.2d 53, 54 (Tex. Crim. App. 1974); see also Johnigan v. State, 628 S.W.2d 852, 854-55 (Tex. App. -- Fort Worth 1982, pet. ref'd) (charge virtually identical to one requested by appellant not authorized under article 38.23(a)). Appellant cites no authority which mandates the submission of the charge he requested. We conclude that the trial court did not err in failing to submit appellant's requested charge to the jury. Accordingly, we overrule point of error two.
        The judgment of the trial court is affirmed.
 
                                                          PER CURIAM
Do Not Publish
Tex. R. App. P. 90.
 
890783.U05
 
 
File Date[12-20-89]
File Name[890783]